Saturday, March 29, 2008

Senior Counsel Scheme: 10 Years On

It has been about a decade since the first batch of Senior Counsel (SC) were appointed by previous Chief Justice Yong Pung How.

If a recent series of articles on advocacy in the Singapore Academy of Law magazine, Inter Se, reflect the undercurrents of the legal fraternity, some serious reflection is taking place about the SC scheme.

When the scheme was launched, it was touted as being the equivalent of the Queen's Counsel (QC) scheme in England. In reality, it was Singapore's response to building a legal system independent from that of its colonial masters.

The Judiciary, taking into account the views of the Attorney-General and the Law Society of Singapore, has imposed conditions on a Queen's Counsel's appearance in Singapore, even if a QC is willing to represent a person on a pro bono basis in the face of an unwilling SC.

Today, the QC appears in the Singapore courts in very exceptional situations, often involving complex commercial transactions worth millions of dollars raising difficult points of law. This policy appears driven by pragmatism, since the QC based in England is more likely to be exposed to more sophisticated legal problems, in light of London's position as a premier financial centre.

But one can question if such exceptional situations should exist in the first place, when the SC was meant to be on equal footing with the QC.

With the recent announcement that foreign law firms will now be able to practise Singapore law and the fact that such foreign law firms tend to undertake complex commercial law, would it open the door to more such exceptional situations?

Ten years into the SC scheme, it may be fair to argue that it was unfair in the first place to compare the SC to the QC.

The QC scheme in England is now wholly different from what it was a decade ago.

Many changes have been made to the process of appointing a QC. It is no longer a political process but an independent and open one. The QC Selection Panel "comprises a retired senior judge, senior barristers, senior solicitors and lay (not legally qualified) members" and is "chaired by a lay member".

A potential applicant for appointment as QC is assessed for excellence in five areas:• Understanding and use of the law.• Oral and written advocacy.• Ability to work with others.• Understanding of diversity and cultural issues, and commitment to the promotion of equality of opportunity.• Level of integrity in dealings with court and all parties.

In essence, the position of QC is now the exclusive enclave of those who have distinguished themselves in practice, as opposed to just those politically favoured.

In the selection of an SC in Singapore, the Selection Committee — comprising the Chief Justice, the Attorney-General and the Judges of Appeal — uses a wider selection criteria.

Current Chief Justice Chan Sek Keong reflected on this at the opening of the legal year in January.

"In the past, we have focused on advocacy skills, legal knowledge and professional integrity as qualifying criteria for such appointments. For future appointments, we will also give consideration to the candidate's contributions to the law in the form of academic teaching, writing, research and committee work for the various law institutions, such as the Singapore Academy of Law and the Law Society, and the future Institute of Legal Education," he said.

Once appointed, beyond court work, the SC juggles additional "national service" roles of leading the profession, championing law reform proposals through the Senior Counsel Forum, and being an example through one's advocacy work to younger lawyers.

However, in recent years, this has become difficult. Some SC do less court work and take on other functions in their respective law firms in order to justify their value to these firms. Indeed, several SC juggle non-legal roles within their own law firms.

Thus, it was no surprise that the trend has prompted CJ Chan to recently consider setting up a committee to look into "regular reappraisal or reaccreditations of SC".

Perhaps, the committee will look into encouraging an SC — after he or she is appointed — to set up his or her own independent practice such that the person can stay focused on advocacy work.

For example, this is what Law Society president Michael Hwang SC did when he left his position in a top law firm to set up his own outfit. The move also freed him up to play a greater role in the Law Society.

An independent SC may also be in a better position to serve as mentor to younger lawyers with the interest to do advocacy work, irrespective of the law firms such young lawyers come from.

After all, not many SC are known to have translated into action the view of SC Harry Elias who says: "I would like the day to come when the phone rings, and someone says, 'My name is XYZ, I have a criminal matter, my client is so-and-so ... Can you please come and help on a free basis?' I would say 'yes'."

It is also a moot point if an SC should retain his status on the primary basis of the currency of his advocacy work. What about the number of young lawyers he trains that go on to distinguish themselves as advocates?

For example, it is no secret that SC Joseph Grimberg was instrumental in training several top advocates who helm various law firms or undertake other key legal roles today.

These factors should be taken into account when CJ Chan's committee looks into conditions that may be imposed for an SC to continue remaining an SC.

In the last 10 years, a unique position has been carved out for the SC in the Singapore legal system. That position can only evolve further.

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Nothing in this blog is meant to substitute professional legal, financial or other advice. Please seek such advice independently! Dharmendra Yadav is presently a corporate counsel in a financial institution. Contact him by e-mail dpyadav {[at]} yahoo.com